March 30, 2012

Judge Rules D.C. Lawyer Cannot Pursue 'Post and Forfeit' Challenge

A Washington federal judge today dismissed a Washington lawyer's constitutional challenge to a controversial post-arrest policy in the District of Columbia known as "post and forfeit."

Under the policy, a person arrested for certain low-level offenses in D.C. can post collateral and then agree to forfeit it in exchange for having the case essentially dropped. Hamilton "Phil" Fox III, an assistant Bar Counsel in Washington, claimed in a 2010 lawsuit against the city over his arrest for disorderly conduct that the policy is coercive and has led to unlawful seizures and violations of due process rights.

In an
opinion (PDF) published this afternoon, U.S. District Judge Amy Berman Jackson said Fox's constitutional challenge failed because he didn't show that the policy was anything but voluntary and, as a result, couldn’t claim he was injured. She wrote that the policy also allows arrestees to go back to reopen a case later on, an option Fox chose not to take.

“The gravamen of every one of the class claims – as stated and as proposed to be restated – is that there is something abhorrent, unlawful, and unconstitutional about the post-and-forfeit procedure itself,” Jackson wrote. “But with respect to that particular practice, plaintiff has simply failed to state a claim upon which relief can be granted.”

Jackson, who heard arguments on the city's motion to dismiss on March 20, only dismissed the section of Fox’s complaint that dealt with his constitutional challenge to “post and forfeit.” Fox can still pursue his personal claims against the city for what he alleged was an unlawful arrest.

When reached by phone this afternoon, Fox said he hadn’t read the decision yet and referred questions to his attorneys. The lawyer handling the constitutional claims, William Claiborne III of Falls Church, Va., did not immediately return a request for comment. A spokesman for the D.C. Office of the Attorney General also could not immediately be reached.

Fox, a former partner at Washington’s Sutherland Asbill & Brennan, was sitting in his car outside a Capitol Hill drugstore in 2008 when police officers pulled up and told him to move. He refused, and was arrested for disorderly conduct. After he was taken to a police station, he paid $35 under the “post and forfeit” policy.

He and his wife, Barbara Fox, sued the city and the individual police officers in U.S. District Court for the District of Columbia in December 2010, claiming there was no probable cause to arrest him.

Fox had also filed to turn the “post and forfeit” challenge into a class action, but Jackson denied that motion as moot today in light of her dismissal of the constitutional claims.